David R. Wingfield

The plaintiffs brought an urgent motion in a class action regarding the price of packaged bread after discovering potentially fraudulent claims on the settlement funds.

The Settlement Administrator identified that approximately $3.7 million in approved claims had been channeled into a small number of bank accounts.

To investigate the issue, the Settlement Administrator's banking partner required an indemnity.

The court granted an order permitting the Settlement Administrator to use any returned funds to cover claims under the indemnity, with any remaining funds to be distributed cy-près.

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The plaintiffs brought a motion for leave to appeal an order excluding from the class for certification persons who claim damages for purchases of packaged bread directly or indirectly sold by a defendant producer without being resold by a defendant retailer.

The Divisional Court granted the motion for leave to appeal on this issue and reserved costs to the panel hearing the appeal.

The defendants brought a motion for leave to appeal an order of Morgan J. dated December 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded in favour of the plaintiffs in the amount of $15,000 all inclusive, payable jointly and severally by the defendants.

The plaintiffs brought a motion to certify a class action against major producers and retailers of packaged bread, as well as their parent companies, alleging a 16-year price-fixing conspiracy.

The court certified the action against the producer and retailer defendants on behalf of direct and indirect purchasers of packaged bread.

However, the court refused to certify the claims against the parent companies, finding no material facts pleaded to support their involvement.

The court also refused to certify claims on behalf of 'umbrella purchasers' (those who bought fresh bread or packaged bread from non-defendants), finding no plausible methodology to prove that the price-fixing of packaged bread caused an actionable increase in the prices of those non-competing or diverse products.

Case management endorsement scheduling a motion to determine whether a motion for leave to appeal a carriage decision in a proposed securities class action is stayed by an initial order under the Companies' Creditors Arrangement Act.

The court directed the responding party to bring a motion to stay the leave application, to be heard by a single judge of the Divisional Court.

Two competing teams of legal counsel sought carriage of a proposed securities class action against CannTrust Holdings Inc. and other defendants for alleged misrepresentations regarding unlicensed cannabis production.

The court granted carriage to the Consortium team, finding that the competing TGF/RG team had a disqualifying conflict of interest because they excluded RBC Dominion Securities Inc., a current client of one of the firms, as a defendant.

The court held that excluding a necessary defendant to prefer a client's interests prejudiced the proposed class members by reducing potential recovery.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

Two consortiums of proposed Class Counsel brought competing motions for carriage of a proposed competition law class action against several German automobile manufacturers.

The underlying actions alleged that the defendants engaged in an anti-competitive conspiracy relating to automotive design, development, manufacturing, and marketing.

The court evaluated the competing litigation plans and case theories, noting that both were viable but that the Quenneville action presented a superior, more creative, and more developable case theory that appropriately included claims for deceptive marketing under the Competition Act.

The court granted carriage to the Quenneville action and stayed the competing Stibbe action.

This case conference in a proposed class action by consumers against Uber for anti-competitive conduct established a timetable for a certification motion.

The court noted a parallel class action (Heller Action) by drivers against the same defendants, where drivers sought employee status, contrasting with the current action's pleading of drivers as self-employed.

The defendants are considering a motion to stay proceedings pending the resolution of the Heller Action regarding driver status.

Despite this, a timetable for the certification motion was set, with flexibility for future revisions.

The appellant appealed from a summary judgment decision dismissing its motion and granting the respondent's motion, which declared the respondent to be the legal and beneficial owner of CDN$100,000 and US$300,000 in stolen funds that the appellant had paid out under mistake to a third party fraudster.

The appellant had been defrauded of over US$66 million in a sophisticated fraud scheme.

The Court of Appeal upheld the lower court's decision, finding that while the appellant successfully traced the US$300,000 to the respondent, the respondent was a bona fide purchaser for value who had paid valuable consideration in Chinese currency without knowledge of the funds' illicit source and had legitimately changed his position.

Following the plaintiff’s successful opposition to a motion for particulars in complex competition litigation, the court addressed the quantum of costs payable.

The plaintiff sought partial indemnity costs of $70,000 out of approximately $106,569 incurred, while the defendants proposed $42,055.

The court accepted that the litigation and motion were complex, involved extensive documentation, cross-examinations, and several days of argument, and that the plaintiff’s counsel’s rates and time were reasonable.

However, reductions were warranted because a cross-motion to strike affidavits was unnecessary and withdrawn, and certain document review costs related to the broader action rather than the motion itself.

The court fixed reasonable partial indemnity costs at $60,000 inclusive of disbursements and HST.

The defendants brought a motion seeking an order compelling the Commissioner of Competition to provide further particulars of alleged misleading representations pleaded under paragraph 74.01(1)(a) of the Competition Act concerning premium text messaging services.

The defendants argued that the statement of claim failed to identify the specific alleged misrepresentations and related details necessary to prepare their defences.

The court held that the pleading sufficiently described the alleged deceptive marketing practices and that the requested particulars largely sought evidentiary details, which are properly obtained through discovery rather than particulars.

Given that the alleged representations could number in the hundreds or more and concerned matters within the defendants’ knowledge, the court exercised its discretion to refuse the request for further particulars.

The motion was therefore dismissed.

In an insolvency appeal, the Court addressed when environmental remediation orders issued by a provincial regulator constitute provable monetary claims under the Companies’ Creditors Arrangement Act.

The majority held that orders not framed in monetary terms may still be compromised where the statutory and factual context shows sufficient certainty that compliance will ripen into a financial liability to the regulator.

Applying that framework, the majority found the remediation orders fell within the claims process and dismissed the appeal.

The dissenting judges would have required evidence approaching certainty that the province would itself perform remediation before treating most orders as contingent monetary claims.

Following the dismissal of an appeal regarding a receiver's decision to permit a corporation in receivership to plead guilty in an American criminal trial, the respondents sought costs.

The appellants argued no costs should be awarded as the issues were novel and complex.

The Court of Appeal rejected this argument, finding the appeal involved a standard review of a Commercial List judge's discretion.

The Court awarded costs to the respondents on a partial indemnity basis, fixing the amounts at a fair and reasonable level rather than actual costs incurred, payable by Lord Black and Conrad Black Capital Corporation.

The court-appointed receiver of a corporation recommended that the company enter a plea agreement and plead guilty to a charge of mail fraud in the United States.

The motion judge approved the recommendation as being within the bounds of reasonableness.

The appellants appealed, arguing the receiver failed to properly assess the risk of conviction and the benefits of the plea agreement.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the receiver's assessment of the risk of conviction, cost savings, and reduced exposure to civil liability and restitution was reasonable.

The appellant brought a motion to introduce fresh evidence on appeal regarding the enforcement of a Singapore judgment in Ontario.

The fresh evidence consisted of affidavits from a Singapore litigant who faced criminal contempt proceedings after criticizing the Singapore judicial system.

The Court of Appeal dismissed the motion, applying the Palmer test.

The court found that the evidence could have been obtained earlier with due diligence and, given its political context, would not have affected the outcome of the commercial dispute.

The appellant appealed a decision recognizing and enforcing a judgment granted against it by the High Court of the Republic of Singapore.

The appellant argued that the Singapore judgment should not be enforced because it was granted by a corrupt legal system with biased judges.

The Court of Appeal dismissed the appeal, finding that the foreign court properly assumed jurisdiction and that the appellant failed to establish the defences of public policy, bias, or lack of natural justice.

The court held that there was no cogent evidence of bias or corruption in private commercial cases in Singapore.

Lawyers Rights Watch Canada brought a motion to intervene as a friend of the court in an appeal concerning the enforcement of a Singaporean civil judgment.

The moving party sought to argue that Canadian courts should refuse to enforce judgments from corrupt legal systems.

The Court of Appeal dismissed the motion, finding that the proposed intervention would largely repeat the appellant's arguments in an essentially private commercial dispute.

The court also noted the motion was brought extremely late and the moving party improperly refused to produce its deponent for cross-examination.